(concurring).
I concur in affirming the order dismissing the petition. However, in view of the fact that, as stated in the main opinion, “the order [of dismissal] was made upon the allegations of the petition and the *364statement of petitioner in open court without any evidence being taken * * I think we are obliged to review the representations made to the court in the light most favorable to the petitioner.
It is not for us to conjecture how the witness or witnesses would have impressed the court had the matter been tried and had they testified. It is the uniformly accepted rule that, where a motion is made for summary dismissal before evidence is presented, the court surveys the matter as it then stands in the light most favorable to the party against whom the motion is made.2 This is also true even after evidence has been presented, if the motion is made before the party has rested his case.3 If the motion is granted the appellate court similarly reviews the record.4
From whatever perspective we review the matter, I think the trial court was correct in dismissing the petition because there appears no basis in the petition, or in the statement of Mr. Arnovitz from which reasonable minds could find that Mrs. Valentine was incompetent.
WADE, J., concurs in the opinion of CROCKETT, J.. Holland v. Columbia Iron Min. Co., 4 Utah 2d -, 293 P.2d 700. See Morris v. Farnsworth Motel, Utah, 259 P.2d 297, 298; Strauss v. Strauss, 90 Cal.App. 2d 757, 203 P.2d 857, 858.
. Arnold v. Sanstol, 43 Wash.2d 294, 260 P.2d 327; Metzger v. Quick, 46 Wash.2d 477, 282 P.2d 812; Eberle v. Hunger-ford, Colo., 274 P.2d 93; Wood v. Chicago, M. & St. Paul R.R. Co., 45 Wash. 2d 601, 277 P.2d 345.
. Martin v. Stevens, Utah, 243 P.2d 747; Moedy v. Moedy, Colo., 276 P.2d 563; Leming v. Oil Fields Trucking Co., 44 Cal.2d 343, 282 P.2d 23; 88 C.J.S., Trial, § 242.